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Property Law - JG cards > Co-Ownership and LandLord-Tenant > Flashcards

Co-Ownership and LandLord-Tenant Flashcards

1
Q

What are the types of co-ownership?

A
  1. Tenancy in Common
  2. Joint Tenancy.
  3. Tenancy in Entirety (for married people)
  4. Community Property
  5. Condominiums.
  6. Co-operatives.
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2
Q

What happens when a co-tenant in a TIC dies?

A

the interest goes to the heir or devisees. No right of survivorship.

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3
Q

what happens when a co-tenant in a Joint Tenancy dies?

A

The interest is divided among the remaining tenants.

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4
Q

What are the 4 Formalities of Creation for a Joint Tenancy?

A
  1. Time - the interest of both tenants must be created at the same time.
  2. Title - must be created by the same instrument.
  3. Interest - Equal interest which is undivided (equal share of ownership).
  4. Possession - all tenants must have the right of possession.
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5
Q

In a tenancy in common, may each tenant own a different interest?

A

Yes. In a TIC, each tenant may own a different share of the interest (i.e. 60/40, etc).

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6
Q

If a co-tenant in a Tenancy in Common only owns a 10% interest in the property, do they have the right to possess the entire property?

A

Yes. In a TIC, no matter how small the interest, each has a right to possess the entire parcel - undivided interest.

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7
Q

If the language is ambiguous as to whether it is a JT or TIC, which one shall be found.

A

Tenancy in Common.

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8
Q

In a JT and TIC, is there a duty to share cost of major improvements?

A

No. there is no duty to share cost of major improvements in JT or TIC.

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9
Q

In a JT and TIC is there a duty to share costs of basic repairs and necessary maintenance?

A

Yes.

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10
Q

Can a joint tenant sever the Joint Tenancy?

A

Yes. JTs have the ability to sever the JT.

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11
Q

How is a JT severed?

A

To terminate a JT, one of the 4 unities must be destroyed - can be accomplished by conveying the interest to a 3rd party (gift or sale)

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12
Q

What happens to the remaining owners when a JT is severed?

A

The remaining owners still have a JT relationship, but the severing owner (new owner) becomes a TIC with them.

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13
Q

If a JT is severed, does the severed owner (new owner) interest subject to the right of survivorship?

A

No. Severance of a JT eliminates the right of survivorship. The new owner is a TIC.

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14
Q

What is physical ouster?

A

When the person is forcibly/intentionally kept out (changing the locks)

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15
Q

Is the person who has been physically ousted owed proportionate rent?

A

Yes. Proportionate rent is owed by the person living on the property to the person physically ousted.

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16
Q

What is Constructive Ouster?

A

Where it is impracticable for both to stay.

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17
Q

If a spouse moves out of the marital residence by their own choosing entitled to rent from the remaining spouse?

A

No. A spouse who moves out of the marital residence by his own choosing for personal reason is not entitle to rent from remaining spouse.

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18
Q

What is a partition?

A

A court order to divide a property into separate portions according to each party’s relative interest in the property.

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19
Q

Can a JT be partitioned?

A

Yes.

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20
Q

Can a TIC be partitioned?

A

Yes.

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21
Q

What are the two types of Partition?

A
  1. Partition in Kind
  2. Partition by Sale
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22
Q

What is a Partition by Kind?

A

When the court partitions the property physically.

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23
Q

What is a Partition by sale?

A

Where the court forces a sale of the property and divides the proceeds among the owners accordingly.

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24
Q

When will a court order a partition by sale?

A

Only if
1. not practicable to partition in kind, or
2. partition in kind will cause substantial injury, or
3. If property is worth “materially less” divided than sold.

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25
Q

Can a JT and/or a TIC lease the property?

A

Yes. A JT and TIC may lease the property. (don’t need permission)

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26
Q

Do a JT or TIC need permission from other co-tenants to lease the property?

A

No. They may lease without the permission of other co-tenants.

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27
Q

If a property is leased in a JT or TIC, what portion of the property does the lessee get to possess?

A

The lessee gets full possession (though not exclusive).

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28
Q

If a co-tenant in a JT or TIC joins the lease, do they retain possession rights?

A

No. If the other tenants join in the lease, they may receive payment of rent, but they give up their possession rights.

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29
Q

If a TIC refuses to join in a lease executed by a co-tenant, may they eject the lessee?

A

No. A TIC who refuses to join in a lease executed by a co-tenant is not entitled to eject the lessee.

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30
Q

In a TIC may a co-tenant lease out his interest to a 3rd party without permission from the co-tenant?

A

Yes. In a TIC a co-tenant may lease out his interest to a 3rd party without permission from the co-tenant.

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31
Q

What is the Landlords future interest called in a lease?

A

A reversion.

32
Q

What are the types of residential leases?

A
  1. Term of Years
  2. Periodic Tenancy
  3. Tenancy at Will
  4. Tenancy at Sufferance.
33
Q

What is a Term of Years lease?

A

A lease for a specified period. Needs to be renewed. Does not actually have to be for a period of years.

34
Q

What is a periodic tenancy?

A

A lease that renews automatically (like month to month leases)

35
Q

What is a Tenancy at Will?

A

A periodic tenancy that can be ended at will (without notice) by either party. Abolished in many states.

36
Q

What is a Tenancy at Sufferance?

A

It’s a holdover tenant. This tenancy distinguishes between a person who is improperly there beyond the lease term and a trespasser. Relevant to whether the LL can use self-help to get them out or not.

37
Q

What are the two types of terms contained in a lease agreement?

A
  1. Express terms
  2. Implied terms
38
Q

What are the express terms of a lease agreement?

A

The terms the LL and Tenant bargained for.

39
Q

When are implied terms a part of a lease agreement?

A

The implied terms are a part of every lease, supplied by common law or judicial ruling.

40
Q

What is an implied term that is a part of every lease agreement?

A
  1. Covenant of Quiet enjoyment.
41
Q

Do tenants have a duty to observe quiet enjoyment of other Tenants?

A

Yes. If a tenant fails to observe the quiet enjoyment of other tenants, a LL may evict them.

42
Q

What are the Landlord rights?

A
  1. Right to Receive Rent.
  2. Right to gain/retake possession of the premises at the end of the lease.
  3. Right to receive the premises in the same condition as they were at the start of the lease, minus normal wear and tear.
  4. Right to Access the premises - see other slide for this one.
43
Q

When may a LL access the premises?

A

A LL may enter the premises to
1. Inspect
2. Repair
3. Make improvements
4. Show the Unit
5. supply services

43
Q

How much notice must the landlord give for notice of entry?

A

Generally, 2 days.

44
Q

What are the Landlord duties?

A
  1. Duty to deliver the premises at the start of the lease
  2. Duty to enforce the (a) right of quiet enjoyment and (b) right of habitability.
45
Q

What does it mean for a Landlord to have a duty to deliver the premises at the start of the lease?

A
  1. The landlord must deliver actual possession of the premises.
  2. The landlord is in breach if he doesn’t evict the hold-over tenant by the beginning of the new tenants term.
  3. If the LL doesn’t deliver actual possession, the tenant may be entitled to damages.
46
Q

What happens if a LL fails to deliver actual possession to a tenant at the beginning of the lease?

A

The LL may be liable to the Tenant for damages.

47
Q

If a LL does not evict a holdover tenant by the beginning of the lease, are they in breach?

A

Yes. The landlord is in breach if he doesn’t evict the hold-over tenant by the beginning of the new tenant’s term.

48
Q

What are the Tenant’s duties?

A
  1. Duty to pay rent.
  2. Duty to give back possession at the end of the lease.
  3. Duty to repair premises/duty not to create waste - leave property in same condition, minus normal wear and tear.
  4. Duty to give reasonable consent - Tenant can’t withhold consent from landlord to enter premises.
  5. Duty not to be a nuisance.
49
Q

What are the Tenants Rights?

A
  1. Right to receive possession of the premises at the beginning of the lease.
  2. Covenant of quiet enjoyment (implied).
  3. Right to Habitable premises (implied)
  4. Right to receive visitors.
  5. Right to live with spouse/partner and any children (no right to have pets).
50
Q

When does a lease need to be in writing?

A

when it is longer than 1 year (SOF)

51
Q

What length of lease will an oral agreement be sufficient?

A

1 year or less.

52
Q

When is an eviction allowed?

A

An eviction may be allowed if a Tenant violates a material provision of the lease.

53
Q

Is a LL non-renewal of a Tenant’s lease allowed?

A

Yes. Non-renewal is generally allowed except where limited by statute or public policy.

53
Q

What is an Actual Eviction?

A

When the LL excludes the Tenant from the leased premises (changing locks). Terminates the Tenants duty to pay rent.

54
Q

What is a Constructive Eviction?

A

If the premises are not habitable and/or there is no quiet enjoyment, then the Tenant might not have to pay rent.

55
Q

What is a retaliatory eviction?

A

An eviction motivated by a desire to punish a Tenant for permissible acts. Presumption of retaliation where a LL evicts for no apparent reason after a Tenant has asserted a right.

56
Q

In a constructive eviction, does the Tenant always need to move out?

A

No not always. Generally, they move out, but partial constructive eviction is possible.

56
Q

What is partial constructive eviction?

A

When the Tenant does not have to move out and the amount of rent due is reduced accordingly.

57
Q

What are the damages in Constructive eviction?

A

Duration of the constructive eviction X the amount of use impaired.

58
Q

When may an action for constructive eviction raised?

A

When the covenant of quiet enjoyment or warranty of habitability have been breached.

59
Q

What is the Covenant of Quiet enjoyment?

A

Implied in every lease. Essentially:
–Quiet living
–No loud neighbors
–Comfort

If the LL conduct substantially and fundamentally impairs the utility of the premises for Tenant.

60
Q

What is the Warranty of Habitability?

A

Essentially:
–Decent living conditions.
–Plumbing/toilets
–Building Codes
–Locks
–implied in most state laws.
–punitive damages

61
Q

What are the LL options when the Tenant moves out before the lease ends?

A
  1. Accept Surrender of the lease.
  2. Not Accept surrender and Re-Let on the Tenants account.
  3. Not Accept surrender, when the LL does not want to re-let on T’s account.
62
Q

When a T moves out before the end of the lease, and the LL Accepts Surrender, what are the damages?

A

Rental price - fair market value for months missed rent

Rental $ minus fair market value for months missed.

63
Q

What are the damages when a T moves out before the end of a lease, and the LL does NOT accept surrender, but Re-rents?

A

The original tenant is liable for any difference between original rent and new rent.

64
Q

What are the damages when T moves out before the end of the lease, and the LL does NOT accept surrender, and does NOT want to re-let on T’s account?

A

Tenant is on the hook for rent until the end of the lease. LL may have to mitigate damages.

65
Q

When a T moves out before the end of the lease, what are they ALWAYS liable for?

A

The cost of getting a new tenant.

66
Q

What is the LL Duty to Mitigate when a T moves out before the end of the lease?

A
  1. Reasonable diligence required.
  2. LL recovers rent while vacant, the difference in rent between old Tenants rent and new Tenants rent, and Costs in finding a new tenant.
67
Q

What happens when a holdover tenant stays past the lease period but continues to pay rent?

A
  1. The LL may accept the payment as a new LL-T relationship or
  2. May sue for possession
68
Q

When may a tenant transfer the lease?

A

A T may transfer the lease through either assignment or sublet unless prohibited by the lease.

69
Q

What does it mean when a Tenant assigns the lease?

A

The tenant conveys the entire property interest, rights, and responsibilities to the new tenant. Creates privity between the LL and new tenant. Ends old tenants right of possession.

70
Q

In an Assignment, is the old tenant still liable?

A

Yes. The new tenant has primary liability but the old tenant has secondary liability.

71
Q

What is a sublease?

A

A contract between the tenant and the new tenant (T1->T2). Does not create any privity between LL and new tenant.

72
Q

If a tenant subleases to a new tenant, may a LL enforce the lease against the old tenant?

A

Yes.

73
Q

What are the Tenants options if there is a problem with Warranty of habitability?

A

–Move out before lease ends,
–withhold rent
–rent abatement
–repair and deduct
–injunctive relief
–administrative remedies
–some states - crim penalties
–compensatory damages.

Property Law - JG cards (10 decks)

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